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The Era Of The ERA Has Come And Gone

This week, the House of Representatives will consider a joint resolution to remove the deadline for ratification of the Equal Rights Amendment. This constitutional amendment was approved by Congress in 1972 and submitted to the states for ratification. The preamble of the proposed constitutional amendment, however, set the deadline for ratification. In 1978, Congress extended the deadline, but even this new deadline has long since passed.

The Equal Rights Amendment (ERA) would explicitly provide equal protection in the Constitution based on sex. This means that laws that treat women differently, or even have the appearance of doing so, for example, could be found unconstitutional if challenged in federal courts. The argument is that the ERA is needed to ensure that the Constitution provides equal protection for women.

Of course, the Equal Protection Clause of the Fourteenth Amendment does already provide such protections, but it simply doesn’t explicitly say that men and women are equal. Newsflash: They are. To even imply that the Constitution suggests otherwise, let alone to launch such a concerted effort otherwise as the left has on the ERA in recent years, is a slap in the face to women. Even so, twenty-five states, including California, Florida, Texas, and Utah, already have established further protections in addition to the Fourteenth Amendment.

Congress passed the Equal Rights Amendment on March 22, 1972. The preamble of the original text of the ERA gave a deadline of seven years -- or March 22, 1979 -- for the necessary three-fourths of the states to ratify the proposed constitutional amendment. Thirty-five states ratified the ERA between March 1972 and January 1977. In 1978, Congress extended the deadline to June 30, 1982, requiring only a simple majority in both chambers and President Jimmy Carter’s signature. No states ratified the ERA between January 1977 and the end of the extension of the deadline.

One interesting aspect of this is that four states -- Nebraska, Tennessee, Idaho, and Kentucky -- have since withdrawn their ratification of the ERA. South Dakota passed a resolution to withdraw its ratification if the ERA wasn’t ratified by the original deadline of March 22, 1979. Although Article V of the Constitution provides the ratification process for constitutional amendments, it’s silent on whether or not a state may withdraw its ratification.

Although the ratification deadline has passed, there has been renewed interest in the ERA in recent years. Unsurprisingly, and unfortunately, it comes out of political motive from the left. The ERA has taken on a much different meaning in discourse today than it was intended as in 19782.

In March 2017, Nevada became the 36th state to ratify the ERA. Illinois became the 37th state to do so in May 2018. Just last month, my home state of Virginia became the 38th state to ratify the ERA. Theoretically, Virginia’s ratification of the ERA could mean that it has reached the necessary three-fourths required to become the 28th Amendment to the Constitution. However, with the deadline having already passed nearly 40 years ago, a legal battle is shaping up, with Nevada, Illinois, and Virginia filing lawsuits to support their ratification of the ERA as legitimate.

Next week, the House will consider H.J.Res. 79, which would remove the ratification deadline for ERA. Currently, one can expect the ERA, should it pass the House, to be dead on arrival in the Senate. Interestingly, like the extension that passed in 1978, only a simple majority will be required for House passage. This presents serious constitutional questions.

Article V of the Constitution requires a two-thirds majority in both chambers to approve a proposed constitutional amendment to be sent to the states for ratification, so how it is possible that a simple majority in both chambers and the President’s signature be enough to amend a proposed constitutional amendment that has already been transmitted to the states? How can the President be involved at all considering that he or she has no constitutional role in the Article V process?

The issues relating to the extension haven’t been resolved. There was a legal challenge on the deadline change for ERA. In Idaho v. Freeman (1982), the U.S. District Court for the District of Idaho determined that the extension of the deadline was invalid and that states could rescind ratification. The Supreme Court stayed the lower court’s ruling. Because the new deadline passed with no additional states ratifying the amendment, the Supreme Court considered the issue moot and vacated the lower court ruling in National Organization of Women v. Idaho (1982), remanding the case back to the lower court with instructions to dismiss.

Another question worth asking is, how can a proposed constitutional amendment for which the ratification deadline has long-since passed be revived?

Some may point to the 27th Amendment, also known as the “Congressional Pay Amendment,” to justify the ratification of the ERA. The text that would become the 27th Amendment was sent by the First Congress to the states for ratification in 1789. Only seven states ratified the amendment by 1792. Ohio ratified the amendment in 1873. No states ratified the amendment for more than 100 years until Wyoming ratified it in 1978. Between 1983 and 1992, when the list of states ratifying the amendment began to rapidly grow. In May 1992, Alabama became the 38th state to ratify the amendment. In total, 46 states ratified the 27th Amendment. The key difference between the 27th Amendment and the ERA is that the original text of the 27th Amendment didn’t have a pre-set, congressionally-intended deadline for ratification.

The final question is, can Congress even constitutionally set a deadline for ratification? In short, the answer is a resounding “yes.” The Supreme Court settled this question in Dillon v. Gloss (1921). In Dillon, the Justice Willis Van Devanter, writing for a unanimous Court, explained, “We do not find anything in the article which suggests that an amendment, once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary.”

Even here, the 27th Amendment looms, but in another case, Coleman v. Miller (1939), the Supreme Court held that the question of what constitutes a “reasonable time” for ratification has to be determined by Congress. Clearly, in the case of the ERA, Congress determined a reasonable time of seven years. Even with the extension for ratification, if one accepts that Congress can change the deadline, the time for ratification of the ERA has come and gone.

The National Archives and Records Administration said that it would receive Virginia’s ratification of the ERA, but it wouldn’t process it. The Office of Legal Counsel at the Department of Justice issued guidance that the “ERA Resolution has expired and no longer pending.” The only way to bring ERA back is to completely restart the Article V process.